Free Motion to Strike - District Court of Colorado - Colorado

Case 1:00-cr-00531-WYD

Document 1685

Filed 02/13/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Action No. 00-CR-0531-D UNITED STATES OF AMERICA, Plaintiff, v. WILLIAM CONCEPCION SABLAN, RUDY CABRERA SABLAN, Defendants.
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William Sablan's Motion To Strike Certain Institutional Setting Incidents From Future Dangerousness On The Grounds That The Conduct Alleged Is Not Criminal Conduct [Wm DP-18] _________________________________________________________________ Defendant William Sablan ("William"), through undersigned courtappointed counsel, respectfully requests the Court to strike certain "institutional setting" "incidents" from the government's Notice of Intent to Seek the Death Penalty ("NOI"). As grounds, counsel state: 1. In support of its nonstatutory aggravating factor of future dangerousness, the government's NOI lists "incidents" occurring in an "institutional setting." (NOI at 8-10). 2. Only paragraph (b) involves criminal conduct that was adjudicated in a court with criminal-offense jurisdiction.
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3. Although the federal courts generally have been reluctant to impose a per se ban on unadjudicated conduct, it is clear that in the context of considering this issue the conduct being discussed is, in fact, criminal conduct. See United States v. Gilbert, 120 F.Supp.2d 147, 153 (D. Mass. 2000) ("prior misconduct must be a crime, and a grave one at that"); United States v. Friend, 92 F.Supp.2d 534, 544 (striking nonstatutory aggravating factor because it did not describe a crime; it only reflected a conspiratorial agreement without an overt act). (See Wm's Memorandum Brief at 11-14). 4. The following unadjudicated incidents listed in the NOI must be stricken because, although they allege violations of rules and regulations of William's custodians, such violations, even if proven, do not constitute criminal conduct:

! Paragraph (a) alleges that while incarcerated in a Commonwealth of
the Northern Mariana Islands facility, an officer "confiscated a hacksaw blade" from William. Although if true, such possession probably violated a rule of the facility, possession of a hacksaw blade is not in and of itself criminal conduct.

! Paragraph (c) alleges that in relation to incident 731923, William
was found to have "destroy[ed] or alter[ed] a security device" in violation of code 208. Additionally, it alleges that in relation to incident 731830, William was found to have "refus[ed] to obey an order of any staff member" in violation of code 307.
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Case 1:00-cr-00531-WYD

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Neither finding reflects criminal conduct.

! Paragraph (d) alleges that in relation to incident 736490, William
was found to have "threatened another with bodily harm" in violation of code 203 and "fail[ed] to stand for count" in violation of code 320. Neither finding reflects criminal conduct.

! Paragraph (e) alleges that in relation to incident 788437, William
was found in part to have "threaten[ed] another with bodily harm" in violation of code 203. This aspect of the incident does not constitute criminal conduct.

! Paragraph (h) alleges that in relation to incident 857603, William
was found, in part, to have "threaten[ed] another with bodily harm in violation of code 203. This aspect of the incident does not constituted criminal conduct.

! Paragraph (j) alleges that in relation to incident 889220, William
was found to have "threaten[ed] staff". Again threatening harm is not criminal conduct. 5. Please see Wm DP-16, Wm DP-21, and Wm DP-22 in which William urges alternate grounds for dismissing these incidents. WHEREFORE, William respectfully requests the Court to strike paragraphs (a) (c) (d) and (j) in their entirety and portions of paragraphs (e) and (h) because they do not allege criminal conduct in support of the nonstatutory factor of future
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Case 1:00-cr-00531-WYD

Document 1685

Filed 02/13/2006

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dangerousness. Dated: February 13, 2006 Respectfully submitted, Patrick J. Burke Dean Neuwirth Burke & Neuwirth P.C. 1660 Wynkoop Street, Suite 810 Denver, CO 80202 303-825-3050 By: s/ Susan L. Foreman Susan L. Foreman 1660 Wynkoop Street, Suite 810 Denver, CO 80202 303-825-3050 Counsel for William Sablan CERTIFICATE OF SERVICE I hereby certify that on February 13, 2006, I electronically filed the foregoing Motion To Strike Certain Institutional Setting Incidents From Future Dangerousness On The Grounds That The Conduct Alleged Is Not Criminal Conduct [Wm DP-18] with the Clerk of the Court using the CM/EFC system which will send notification of such filing to the following e-mail address: [email protected] [email protected] [email protected] [email protected] By: s/ Susan L. Foreman Nathan Chambers Chambers, Dansky & Mulvahill 1601 Blake Street, Suite 300 Denver, CO 80202 303-825-2222

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